Talking with police officers is
usually one of the more stressful encounters we have in our lives, and one that
we typically avoid at all costs. Even when we've committed no crime, it can be nerve racking, but when we're guilty it's much worse. Police officers, particularly detectives, are judged by
their ability to catch suspects and close cases; tasks that become immeasurably
easier if a confession from a suspect can be induced. Therefore, police questioning of a suspect,
whether before taking a suspect into custody or after an arrest, is generally
aggressive, intrusive, and often downright tricky. To help you prepare yourself better should an
encounter with the police unfortunately arise, this article will provide
information as to the relevant laws and principles to follow when facing police
questioning, whether you are being questioned and have not been taken into
custody, or if you have been arrested.

Pre-custodial Police Questioning

Declining to Answer

As a citizen of the United States,
under the 5th Amendment you have the right to remain silent. This “right against self-incrimination”
applies whether you have been taken into custody or not. Typically, when a crime occurs police will
come to the scene to investigate, which usually includes talking to witnesses
and other parties who may have useful information. At this point, under Federal law, you are
under no obligation to answer an officer’s questions. The same is true if you are a suspect,
however, the Supreme Court recently held in Hiibel v. Sixth Judicial
District Court of Nevada, that a suspect subject to an investigative
detention stop could be arrested under a state
stop and identify law and obstruction statute for refusal to identify himself
or provide identification. These laws
apply when the police make what’s called a “Terry” stop, referring to the
defendant’s name in a famous Supreme Court case, which occurs when a suspect is
reasonably stopped and detained by police for questioning out in the
field.

Most states have similar
identification and obstruction laws, and therefore it is generally wise to
provide identifying information to a police officer. However, that is as far as it goes. A suspect or witness is freely able to
decline to answer police questioning, and often a lawyer should be contacted to
protect the suspect’s rights, even before being taken into custody.

Lying to the Police

Lying to the police should be
avoided at all costs. It is far better
to decline to answer a question than to lie.
Lying during a police investigation can come back to haunt you big time,
as anything you say, as you know, can be used against you in court. If you are unsure of how to respond to police
questioning, be sure to consult an experienced criminal defense lawyer who can
represent you.

Police Questioning of Those Who Are
Arrested

Miranda
Rights

Police are required to administer an
arrested suspect’s Miranda rights
before initiating an interrogation, informing the suspect of his right to
remain silent and consult with an attorney.
If the police fail to properly administer a Miranda warning, they risk losing the ability to use any of the
information discovered through a subsequent interrogation in a court of
law. Even relevant, incriminating
evidence will instead be excluded if a proper Miranda warning is not provided.
Therefore, arrested suspects should take note of their right to hire an
attorney, and in almost all instances, should exercise this right before
agreeing to a police interrogation.

Intoxication,
Mental Limitation and Confessions

The
court or a jury, when considering the admissibility or credibility of a
confession, can take a suspect’s state of mind, including his level of
intoxication, into account. However,
courts have ruled that just because a suspect is more likely to confess when
intoxicated does not necessarily mean he is mentally incapable of giving a
valid confession. The burden thus falls
on the suspect to show that the confession was involuntary and untrue. The court may exclude a confession if a
suspect was so grossly intoxicated that he could not voluntarily waive his
rights, but the other factual circumstances must also support such a
claim.

Under the Constitution, confessions must be
voluntary in order to be valid. Often
police interrogators will offer a promise of leniency if the suspect
cooperates, however, the general rule is that the promise of leniency to a
suspect will nullify any subsequent confession. Before agreeing to any questioning by an
interrogator that may end up leading to a confession, consult an experienced
attorney to represent you at the interrogation.